Writ Petition No.1773 of 2013

24th November, 2014.

Petitioner Counsel: Mr. V.P. PATANKAR
Respondent Counsel: Mr. A.G. KOTHARI, Mr. PRASHANT KAMBLE i/b. A.S. RAO

Cases Cited:
Latika Rajaram Mane Vs. State of Maharashtra, 2013(4) ALL MR 59=2013 (4) Mah.L.J. 244 [Para 4,5,8,14,16,17,18,21,22]
Deepa Jain Vs. Principal, The Cathedral and John Connon School, WP No.4908/2014, Dt.11.9.2014 [Para 4,5,14,21]
Pallavi Resources Ltd. Vs. Protos Engineering Company, (2010) 5 SCC 196 [Para 5]
Purbanchal Cables and Conductors Private Limited Vs. Assam State Electricity Board & Anr., 2012(4) ALL MR 541 (S.C.)=(2012) 7 SCC 462 [Para 6,21]
Komal Rugwani Vs. State of Maharashtra, 2011(4) ALL MR 223=2011 (4) BCR 459 (FB) [Para 15,16,21]
Lancaster Motor Co. (London) Ltd. Vs. Bremith Ltd., (1941) 1 KB 675 : (1941) 2 ALL ER 11 (CA) [Para 21]

JUDGMENT

JUDGMENT :- Rule. With the consent of the learned counsels for the parties and at their request, Rule is heard finally.

2. This petition is directed against the judgment and order dated 29 October 2012 in Appeal No.6 of 2012 made by the Additional School Tribunal, Navi Mumbai (Tribunal) holding that it has no jurisdiction to entertain appeals made by teachers of unaided schools not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority.

3. There is no necessity to advert to the facts in any great details. Suffice to state however, that there is no dispute that respondent Nos.1 and 2 represent a school, which is indeed unaided, that is not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority.

4. Mr. V. P. Patankar, the learned counsel for the petitioner submitted that this issue has been squarely answered in favour of the petitioner by the Division Bench of this Court in the case of Latika Rajaram Mane vs. State of Maharashtra [Writ Petition No. 4673 of 2012 decided on 22 April 2013] 2013 (4) Mah. L.J. 244 : [2013(4) ALL MR 59] and of the Single Judge in the case of Deepa Jain vs. Principal, The Cathedral and John Connon School Writ Petition No.4908 of 2014 decided on 11 September 2014. Both the decisions, upon interpretation of the provisions of Maharashtra Employees of Private Schools (Condition of Service) Act, 1977 (MEPS Act) and the Right of Children to Free and Compulsory Education Act, 2009 (RTE) have held that appeal at the behest of a teacher of an unaided school not receiving any kind of aid or grant to meet its expenses from the appropriate Government or local authority is maintainable before the School Tribunal under Section 9 of the MEPS Act.

5. Mr. A. G. Kothari, learned counsel for respondent Nos. 1 and 2, i.e., the school management and the school, however, submitted that the decisions of this Court in the cases of Latika Mane, [2013(4) ALL MR 59] (supra) and Deepa Jain (supra) have passed 'sub silentio' for the following reasons:

(a) The crucial submission that the provisions of RTE apply only to 'recognised school' meaning thereby a school recognised under Sections 18 and 19 of the RTE and not a school recognised under some other statute, like for instance the Bombay Primary Education Act, 1947, was neither raised nor considered by the Division Bench whilst deciding Latika Mane, [2013(4) ALL MR 59] (supra). In the present case, the school in question has neither applied for nor obtained any recognition in terms of Sections 18 and 19 of the RTE. Therefore, at the behest of the petitioner, who is at the highest a teacher in an unaided and unrecognized school, no appeal can be said to be maintainable.

(b) The submission that right to appeal, even at the behest of a teacher of an unaided school can lie only where such teacher fulfills the qualifications or is appointed under Section 23(1) of the RTE, was neither raised nor considered by the Division Bench whilst deciding Latika Mane, [2013(4) ALL MR 59] (supra). Section 24(3) of the RTE, which is the basic source under which right to appeal came to be imparted to teachers of unaided schools can apply only to teachers either appointed under Section 23(1) of the RTE or to those who fulfill the qualifications prescribed under Section 23(1) of the RTE, which position is clear from the bare reading of Sections 23 and 34 of the RTE.

(c) If right to appeal is conceded in favour of teachers of schools not recognised under Sections 18 and 19 of the RTE or teachers who are neither appointed nor fulfill the qualifications prescribed under Section 23(1) of the RTE, then the provisions contained in Sections 18, 19, 23 and 24 of the RTE shall be virtually rendered otiose or redundant. On the contrary, if right to appeal is retained only in favour of teachers of recognised schools fulfilling qualifications prescribed by the RTE, then the case of harmonious construction of the statute will be promoted. This would be consistent with the dictum of the Supreme Court in the case of Pallavi Resources Ltd. vs. Protos Engineering Company (2010) 5 SCC 196. In as much as this aspect was not considered by the Division Bench whilst deciding Latika Mane, [2013(4) ALL MR 59] (supra), the precedential value thereof stands diminished by applying the doctrine of sub silentio.

6. Mr. Kothari placed reliance upon the decision of the Supreme Court in the case of Purbanchal Cables and Conductors Private Limited vs. Assam State Electricity Board & Anr. (2012) 7 SCC 462 : [2012(4) ALL MR 541 (S.C.)], in support of his contention that the decision rendered without argument, without reference to crucial words of a rule or without regard to a previous binding precedent, was itself not a binding precedent being sub silentio.

7. The rival contentions now fall for my determination.

8. Independent of the decision in the case of Latika Mane, [2013(4) ALL MR 59] (supra), I am unable to accept any of the contentions urged by Mr. Kothari in defence of the view taken by the Tribunal in the impugned order. In such circumstances, there may be no necessity to go into the issue as to whether the case of Latika Mane, [2013(4) ALL MR 59] (supra) has passed sub silentio.

9. There is no merit in the contention of Mr. Kothari that the definition of the term 'school' as contained in Section 2(n) of the RTE is restricted only to :-

(i) recognised schools; or

(ii) school recognised in terms of Sections 18 and 19 of the RTE;

10. Mr. Kothari's contention as aforesaid, militates against the very definition of the term school as contained in Section 2(n) of the RTE, which reads thus :-

"(n) "school" means any recognised school imparting elementary education and includes-

(i) a school established, owned or controlled by the appropriate Government or a local authority;

(ii) an aided school receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority;

(iii) a school belonging to specified category; and

(iv) an unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority." [Emphasis supplied]

11.The term school as defined under Section 2(n) of the RTE does not merely mean any recognised school imparting elementary education, but also includes an unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority. The legislature having employed the terms 'means' and 'includes' to define the term 'school', such definition shall have to be considered as exhaustive. The definition will embrace not only what is comprised within the ordinary meaning of the 'means' part, but will also include all that is stated after the 'includes' part. The term 'includes' is generally used in the definition clause in order to enlarge the meaning of words or phrases which may find place in the statute and when it is so used, the defined word or words must be construed as comprehending, not only such things, as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include.

12. Applying such well accepted norm of interpretation, it is clear that the definition of the term school as contained in Section 2(n) of the RTE, is exhaustive. The definition cannot be restricted only to any recognised school imparting elementary education, but must also include within its sweep an unaided school not receiving any kind of aid or grant to meet its expenses from the appropriate Government or the local authority. Sub clause (iv) of Section 2(n) of the RTE, which makes specific reference to the inclusion of such unaided school within the definition clause of the term school admits of no ambiguity in the matter. The contention of Mr. Kothari, virtually proceeded on the basis that Section 2(n) of the RTE, which defines the term school contained no further words beyond the phrase 'school means any recognised school imparting elementary education'. The contention, which virtually ignores crucial words and phrases of the definition clause, therefore, deserves no acceptance.

13. The further contention that the term 'recognised' would mean and imply school recognised in terms of Sections 18 and 19 of the RTE and no other, at least prima facie does not appear to be very well founded. This is because the legislature in the first place has not specified or defined the term 'recognised' to mean recognised under Sections 18 and 19 of the RTE. Secondly, the legislature, prior to the word 'recognised' has used the word 'any', which in the context, is a word indicating amplitude. If the express words of the statute are interpreted in the light of object and purpose of providing a comprehensive remedy to primary teachers across the State of Maharashtra, then at least prima facie, the contention of Mr. Kothari cannot be accepted. In any case, considering the definition clause contained in section 2(n), including sub clause (iv) thereof, there is no necessity to delve any further on this issue.

14. In the case of Deepa Jain (supra), the school in question was affiliated to ICSE board but not recognised in terms of Section 2(21) of the MEPS Act and the issue arose as to whether teacher of such a school could avail remedy of appeal by invoking the provisions of RTE. Therein, upon consideration of the Scheme of RTE with particular reference to the decision of the Division Bench in the case of Latika Mane, [2013(4) ALL MR 59] (supra), this Court observed thus :

10. The Division bench in Latika Mane expanded the legal position holding that RTE Rules have enlarged the scope of the remedy and it is available to "any" teacher from "any" school, which are covered under the RTE Act and RTE Rules. The Division bench took note of the object and purpose of making such comprehensive remedy available to primary teacher across State of Maharashtra. Division bench held as under :

"10. The field of elementary education comprising of education from the first to eighth standards has now been comprehensively regulated by the Central Act. The Right to Education Act specifically contemplates that the grievances of teachers shall be redressed in such manner as may be prescribed by the rules. The rules which have been framed by the State of Maharashtra provide for a right to appeal to the Tribunal constituted under Section 8 of the MEPS Act in respect of the matters enunciated therein. Rule 20 is framed in broad terms. A right of appeal is conferred against the following orders: (i) An order of dismissal; (ii) An order of removal; (iii) An order otherwise terminating the services; (iv) An order of reduction in rank; and (v) An order of supersession by the management while making any appointment to a post by promotion. These categories correspond broadly to clauses (a) and (b) of Subsection (1) of Section 9 of the MEPS Act. But significantly, the ambit of the remedy which is made available to primary school teachers by Rule 20 is not only confined to these orders, but has been widened to include any decision of the management regarding the service conditions of a teacher or employee by which any teacher or employee is aggrieved. As a result of the framing of Rule 20, in accordance with, and under the power conferred by the Central Act, a comprehensive remedy in the form of an appeal before the School Tribunal is provided to any teacher or employee who is aggrieved by any decision of the management regarding his or her service conditions, including those decisions which result in one of the consequences spelt out in clauses (a) and (b).

11. The object and purpose of making a comprehensive remedy available to primary school teachers across the State of Maharashtra against any decision of the management with regard to their conditions of service, as well as decisions of the nature contemplated by clauses (a) and (b) of Rule 20 is to ensure that such teachers are protected against exploitation and unfair practices. The ability of a teacher to dedicate himself or herself to the cause of education of young children is contingent on a secure working environment and on conditions of work which provide certainty, transparency and objectivity in decision making by management. Leaving primary teachers to the whim and caprice of a private management was evidently a consequence which both the Central legislation and the rule making authority sought to obviate by providing a judicial remedy before the School Tribunal manned by a Judicial Officer. Access to judicial remedies is an integral part of any regime which provides just and stable conditions of work. This is also the ethos of the constitutional values in the Directive Principles of State Policy. Those values the Court has a duty to protect. It is necessary to emphasize this aspect because in determining as to whether the rules which have been framed under the Right to Education Act, would apply to a situation where a termination of services has taken place even prior to the enforcement of the rules, the object and purpose of the remedy is an important circumstance which must be taken into account. The essential object and purpose is to provide access to justice to primary school teachers. The constitutional guarantee of free and compulsory primary education is given practical content by the Act and the Rules. As judges give substance to them in deciding cases, the importance of the constitutional guarantee must be borne in mind."

11. It is not disputed and cannot be disputed that a school recognized by an ICSE board also falls within the ambit of the RTE Act and RTE Rules. A teacher working as a primary teacher in such school will have a right to file an appeal to the School Tribunal, on the condition laid down therein. After enforcement of the RTE Rules, the denial of right to file an appeal to a primary teacher, on the ground that the school is recognised by an ICSE board, is not permissible."

15. In support of his second contention, Mr. Kothari submitted that the right of appeal under section 9 of the MEPS Act conferred upon teachers of unaided schools by Rule 10 of the RTE Rules is clearly in the context of Grievance Redressal mechanism as contemplated by section 24(3) of the RTE. The provisions contained in section 24 of the RTE apply only to teachers appointed under subsection (1) of section 23 of RTE. Therefore, right of appeal can be available only to teachers who fulfill qualifications as prescribed by section 23(1) of the RTE and who can consequently claim to be appointed under section 23(1) of the RTE and to no others. The School Tribunal, in the present case has upheld this contention by inter alia noting that there is no material on record that any academic authority has been notified or that such academic authority has laid down the qualification for appointment of teachers under section 23(1) of the RTE and in absence of the same the dictum of Full Bench in case of Komal Rugwani vs. State of Maharashtra 2011 (4) BCR 459 (FB) : [2011(4) ALL MR 223] shall have to be applied and the appeal, held as not maintainable.

16. At the outset, the approach of the School Tribunal in applying the ratio of Komal Rugwani, [2011(4) ALL MR 223] (supra) despite the fundamental change in the position of law brought about by RTE, is obviously incorrect. This is precisely what has been laid down by the Division Bench in case of Latika Mane, [2013(4) ALL MR 59] (supra). True, the School Tribunal which made the impugned order on 29 October 2012 did not have benefit of the decision in the case of Latika Mane (decided on 22 April 2013). Nevertheless, the view taken by the School Tribunal can no longer be countenanced.

17. There is no merit in the contention of Mr. Kothari that Division Bench whilst deciding Latika Mane, [2013(4) ALL MR 59] (supra) was not alive to the Scheme of RTE, particularly in the matter of appointment of teachers in terms of Section 23 of the RTE. In paragraph 7 of the decision in the case of Latika Mane, [2013(4) ALL MR 59] (supra), there is clear reference to the scheme of RTE, including in particular to the provisions contained in Sections 23 and 24 thereof. Section 23(1) of the RTE provides that any person possessing such minimum qualifications, as laid down by an academic authority, authorised by the Central Government, by notification, shall be appointed as a teacher. Section 23(2) provides for regularisation, by way of acquisition of prescribed qualifications within a period not exceeding five years. The proviso to Section 23(2) permits unqualified, inservice teachers to acquire qualifications within a period of five years. Section 24(1) provides for duties to be performed by teachers appointed under Section 23(1) of the RTE and Section 24(3) provides that the grievance, if any, of the teacher shall be redressed in such manner as may be prescribed. Such prescription is contained in Rule 20 of the RTE Rules 2011, which reads thus :

"20. Grievance Redressal mechanism for teachers for purposes of section 24(3).-(1) A teacher or employee of a school other than a school run by Government or Local Authority, who is aggrieved by any of the decisions of the management regarding his or her service conditions or a teacher or an employee.-

(a) who is dismissed or removed or whose services are otherwise terminated or who is reduced in rank, by the order passed by the management; or

(b) who is superseded by the management while making an appointment to any post by promotion shall have a right of appeal and may appeal against such order or supersession to the tribunal constituted under section 8 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (Mah.III of 1978).

(2) The appeals so preferred shall be governed by the provisions of sections 8, 9, 10, 11, 12, 13 and 14 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (Mah.III of 1978) and the Rules 39 and 43 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981."

18. From the aforesaid scheme, it cannot be said that the Grievance Redressal mechanism is restricted only to teachers appointed under Section 23(1) of the RTE or who fulfill the qualifications as prescribed under Section 23(1) of the RTE. The fulfillment of such qualifications is an independent matter. This cannot be linked to the issue of providing any Grievance Redressal mechanism. In any case, the amplitude of the comprehensive remedy intended to be provided by the Legislature cannot be whittled down by linking the two issues. As noted earlier, the Division Bench of this Court in the case of Latika Mane, [2013(4) ALL MR 59] (supra) in the context of Rule 20 of RTE Rules 2011 has held that the State Government as a delegate of the legislature, has provided a comprehensive remedy to teachers of primary school as a matter of public policy to move the judicial forum in the interest of ensuring secure and stable conditions of service. The scope and import of such comprehensive remedy cannot be permitted to be whittled down based upon some strained interpretation, which appears to be contrary to both the letter as well as the spirit of the law.

19. The view taken by the Tribunal is vitiated by yet another error. The Tribunal itself holds that there was no material before it to indicate whether any academic authority had been notified in terms of Section 23 of the RTE and whether any qualifications had been prescribed for appointments in terms of Section 23(1) of the RTE. If this be the position, then the Tribunal was obviously in error in non suiting the petitioner on the alleged ground that she did not fulfill the qualifications as prescribed under Section 23(1) of the RTE. It is to be noted that the petitioner possess qualifications of M.A., B.Ed., (History and Hindi). The impugned judgment and order deserves reversal on this ground as well.

20. Finally, there is no merit in the submission that the grant of right of appeal to a teacher of a school, which may not have obtained formal recognition under the RTE or to a teacher who may not fulfill the qualifications as prescribed for appointment as a teacher under section 23(1) of the RTE, would render the provisions of sections 18 and 19 of the RTE which deal with recognition and sections 23 and 24 of the RTE which deal with the qualifications, redundant or otiose. The two sets of provisions operate in different fields and provisions of appeal in no manner renders the provisions contained in sections 18 and 19 or for that matter sections 23 and 24 of the RTE redundant or otiose. Mr. Kothari contended that there is a mandate cast upon every school to obtain recognition in terms of section 18 after complying with the norms as prescribed under section 19 of the RTE. In the present case, since the school which he represents, has not obtained any recognition, no appeal would lay at the behest of a teacher of such a school. This contention, virtually amounts to cutting the nose to spite the face. At least a writ Court shall not countenance of a contention on behalf of the school management that because it has not obtained recognition under section 18 of the RTE or fulfilled norms prescribed under section 19 of the RTE, a teacher terminated by it should be deprived of the comprehensive remedy of right to appeal before the School Tribunal. The issue of non-compliance, if any, of the provisions of sections 18,19, 23 and 24 of the RTE and the effect thereof is quite independent of the issue which arises in the present case. There is no reason to link the two issues.

21. In view of the aforesaid, there is no necessity to decide upon the even otherwise tall contention that the decision of the Division Bench in case of Latika Mane, [2013(4) ALL MR 59] (supra) has passed 'sub silentio'. Suffice to note that the decision of the Division Bench in case of Latika Mane, [2013(4) ALL MR 59] (supra) takes note of the definition of 'school' as contained in section 2(n) of the RTE and after analysing the object and scheme of the RTE holds that an appeal at the behest of teacher of an unaided school would lie before the School Tribunal under section 9 of the MEPS Act in the light of the provisions contained in Rule 20 of the Maharashtra Right of Children to Free and Compulsory Education Rules, 2011. In recording such conclusion, the Division Bench has also held that there has been a fundamental change in the position of law since coming into force of RTE and Rules made thereunder and therefore, the position which obtained prior thereto in terms of the decision of the Full Bench of this Court in case of Komal Rugwani, [2011(4) ALL MR 223] (supra), will no longer operate. The entire scheme of the RTE and Rules made thereunder has been duly considered. There is accordingly, no merit in the submission that Latika Mane, [2013(4) ALL MR 59] (supra) came to be passed 'sub silentio'. In any case, since there is a basic fallacy in the contention that the definition of 'school' as contained in section 2(n) of the RTE is restricted only to a recognized school, the alleged non consideration of such a contention, cannot obviously diminish the precedential value of Latika Mane, [2013(4) ALL MR 59] (supra) and Deepa Jain (supra) by resort to the doctrine of 'sub silentio'. The decision of the Supreme Court in case of Purbanchal Cables and Conductors Private Limited, [2012(4) ALL MR 541 (S.C.)] (supra) quotes with approval the dictum of the Court of appeal, in Lancaster Motor Co. (London) Ltd. v. Bremith Ltd. (1941) 1 KB 675 : (1941) 2 ALL ER 11 (CA), that a decision "without argument, without reference to the crucial words of the rule, and without any citation of the authority" was not a binding precedent being 'sub silentio'. True, that the argument now raised by Mr. Kothari may not have been raised before the Division Bench deciding Latika Mane, [2013(4) ALL MR 59] (supra). However, having found no merit in the argument, it cannot be said that the precedential value of Latika Mane, [2013(4) ALL MR 59] (supra) or Deepa Jain (supra) is in any manner diminished by the vice of 'sub silentio'.

22. In view of the aforesaid discussion, in my judgment, this case is covered by the decision of the Division Bench in case of Latika Mane, [2013(4) ALL MR 59] (supra) and based thereon the impugned judgment made by the Tribunal shall have to be set aside.

23. In the result, I make the following order:

A] Rule is made absolute in terms of prayer clause (a) of the petition, which reads thus:

"(a) writ of certiorari or writ in the nature of certiorari or any other appropriate writ, direction or order thereby calling for records and proceedings of Judgment & Order dtd. 29.10.2012 passed by the Ld. Presiding Officer, Addl. School Tribunal, Navi Mumbai in Appeal No.6 of 2012 and after examining legality, validity and propriety thereof the said Judgment & Order dtd.29.10.2012 passed by the Ld. Presiding Officer, Addl. School Tribunal, Navi Mumbai in Appeal No.6 of 2012 be quashed and set aside & Appeal No.6 of 2012 be allowed;"

B] Appeal No.6 of 2012 instituted by the petitioner is restored before the Additional School Tribunal, Navi Mumbai (Tribunal) and the Tribunal is directed to dispose of the same on merits within a period of one year from today.

C] Parties to appear before the Additional School Tribunal, Navi Mumbai on 8 December 2014 at 11.00 a.m.

D] In the facts and circumstances of the present case, there shall be no order as to costs.

Ordered accordingly.